Some GOP Politicians Push to Ease FL Drug Laws

Jeffrey Pitts is serving a five-year prison sentence for drug trafficking involving only eight to 27 Lortab tablets which is a prescription-only pill containing a small amount of a controlled substance but mostly made up of the same ingredient found in Tylenol and similar over-the-counter painkillers.

His mother, nurse Paula Pitts, said he's doing time essentially for what she can give a patient during a 12-hour shift at the Panama City hospital where she works.

"Lortabs are what we use for lesser pain," she said. "Every time I medicate a patient I think of my son."

The mandatory minimum sentence for his conviction was three years.

It's the kind of harsh punishment that has even many conservative Republicans, including former Gov. Jeb Bush, calling for changes in Florida's tough narcotics laws that are helping fill state prisons with nonviolent drug users and costing the state tens of millions of dollars annually.

Passing any changes won't be easy in a year when lawmakers are facing re-election.

"These folks never want to look weak on crime, and it's really not weak on crime," said Sen. Ellyn Bogdanoff, a Fort Lauderdale Republican who earlier this year sponsored unsuccessful legislation to abolish minimum mandatory sentences. "The judges can ultimately put somebody away for the maximum sentence. ... They know who the traffickers are and they know who the addicts are and there's a big difference."

Prosecutors and police are skeptical of such proposals and some are outright hostile.

"It's not the time to diminish the consequences of drug trafficking," Seminole County Sheriff Don Eslinger told a Senate panel.

He cited statistics showing about 50 people a week die in Florida from overdosing on prescription drugs.

Jeffrey Pitts' situation is a case study in the severity of Florida's drug laws, which were passed in reaction to a violent "cocaine war" that gripped South Florida in the 1970s, compared to other states.

The most Pitts would have faced for the same amount of Lortabs in Texas, considered somewhere in the middle among the states in severity of drug penalties, would have been a year in jail and $400 fine.

As a first-time offender, though, he likely would have been diverted to a drug court and substance abuse treatment instead of jail, said Vikrant Reddy, policy advisory for the Right on Crime advocacy group based in Austin, Texas. "That's a glaring example of why the minimum mandatories are so nefarious,"

Reddy said. "It's an extraordinary law in its breadth. It transcends left-right politics."

Right on Crime advocates a conservative agenda that includes drug courts and treatment instead of long sentences to cut prison costs and, it maintains, reduce crime.

Bush signed the group's statement of principles in September, joining such conservative stalwarts as anti-tax crusader Grover Norquist, former federal drug czar Bill Bennett and former Attorney General Ed Meese.

The organization notes Florida's prison system, which now has about 102,000 inmates, grew more than 11-fold from 1970 through 2009 while the state's population increased just under three times.

Florida's incarceration rate is 26 percent higher than the nation's.

Not all of that growth is due to drugs.

Florida also has gotten tougher on other crimes.

That includes minimum mandatory sentences ranging from a year in jail for killing or injuring livestock to life in prison in some cases for a third violent felony conviction.

Florida also has done away with parole and requires inmates to serve a minimum of 85 percent of their sentences, which have kept inmates behind bars longer.

If Florida imprisoned people at the same rate it did in 1972-73 the state would have only 23,848 inmates and be spending $446 million a year on prisons instead of $2.4 billion, according to Right on Crime.

A Department of Corrections study shows 26.5 percent of inmates admitted during the 2009-10 fiscal year were convicted primarily of drug crimes and that almost two-thirds of all prisoners have a substance abuse problem.

Of those inmates in Florida prisons with a primary drug offense on June 30, only 15 percent had been convicted of possession while 49 percent were in for selling, manufacturing or distribution and 36 percent for trafficking.

"It's the prison-industrial complex," said Allison DeFoor, a prison minister and former Monroe County sheriff, judge and prosecutor now serving as vice chairman of the Center for Smart Justice in Tallahassee.

The center was established by Florida TaxWatch, a business-backed state budget research and advocacy organization that also has endorsed Right on Crime.

Its mission is to conduct research and promote data-driven policy decisions.

"The system was rigged. It was rigged for more prisons," DeFoor said. "They shut down all the substance abuse treatment. They shut down all the education they could shut down."

Like many drug convicts, family members say Pitts began taking prescription painkillers due to injury or illness.

He had been in motorcycle accident and was working at a drug store, said his wife, Janie, also a nurse.

The facts of his crime are in dispute because he never went to trial.

Instead he took a plea deal that resulted in his conviction.

Employees at the pharmacy were questioned about missing drugs in 2006, according to his family.

Pitts signed a form admitting he had taken at least five and possibly more Lortab pills, his mother said.

The store took no action and he worked there several more months before going to law enforcement school.

Pitts was a security guard at a Navy base when arrested four years later.

Police found the form in his employment records while investigating a tip from an acquaintance arrested on unrelated drug charges, his wife said.

Prosecutors say they had evidence thousands of pills were missing from the store and that another defendant would have testified he bought those drugs from Pitts.

They didn't need to prove that, though, to get a trafficking conviction.

For oxycodine, the controlled substance in Lortabs, all they had to do was show Pitts possessed pills weighing at least four grams.

Each tablet typically contains 7.5 milligrams of oxycodone combined with 500 milligrams of acetaminophen, the over-the-counter drug found in Tylenol.

So even if Pitts took 27 Lortabs, he would have possessed only 0.2 grams of oxycodone which is 5 percent of four grams.

But under Florida law, the entire pill is counted, putting him over the four-gram limit.

That means eight tablets is enough to get a minimum mandatory sentence of three years and a $50,000 fine for trafficking in oxycodone, according to Florida Senate staff analysis.

Pitts pleaded guilty to that charge and accepted the maximum five-year sentence to avoid an even harsher penalty because he had originally faced more serious trafficking and money laundering charges.

He could have gotten a minimum sentence of 15 years and a $100,000 fine if convicted of possessing 28 to 55 tablets or 30 years and $500,000 for 56 or more pills.

The trafficking-by-weight provision also results in stiff minimum mandatory penalties for street drugs such as marijuana and cocaine.

Pitts' mother is active with a national group called Families Against Mandatory Minimums.

"A lot of people don't understand that a trafficker is not just Pablo Escobar bringing in a mountain of cocaine in a submarine down in Miami," said Greg Newburn, the organization's Gainesville-based Florida project director. "It's a drug user who has no intent to distribute, but just happens to possess too much of a given substance."

During this spring's legislative session, Bogdanoff's bill to repeal minimum mandatory sentences cleared committee in the Senate but never got a floor vote.

A similar provision died in House committees.

Police and prosecutors consider minimum mandatory sentences an important tool for obtaining convictions without going to trial.

That's because they can get plea deals from defendants such as Pitts who are afraid to risk even more extreme minimum-mandatory sentences.

Bogdanoff is considering a different approach for the next legislative session that convenes in January.

Instead of abolishing the minimum mandatories, she wants to increase how much weight it takes to get such a sentence and count only controlled substances, not legal drugs that may be mixed in with them toward that weight.

She also wants to deal with another unique feature of Florida's drug laws that allows people to be convicted without proof they knew they possessed illegal drugs.

Orlando U.S. District Judge Mary Scriven in July ruled Florida's drug law was unconstitutional for that reason.

The state is appealing.

"We need to put in some sort of language that recognizes that there must be some level of intent," Bogdanoff said.

Rather than requiring the state to prove intent, she said it might take the form of a rebuttable presumption that would give defendants a chance to prove they were unaware they had narcotics DeFoor isn't optimistic about the chances of changing Florida's sentencing scheme in a year when lawmakers will be preoccupied with redistricting.

He's pushing instead for prevention and steps to reduce the chances inmates will commit new crimes when they are released through programs such as substance abuse treatment and faith- and character-based prisons.

"Sentencing reform is an option but it's not necessary," DeFoor said. "All you have to do is cut off your inputs and cut off your recidivism and you're going to starve the beast."

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